G.R. No. 144018. June 23, 2003.

FAR EAST BANK AND TRUST CO. (now BANK OF THE PHILIPPINE ISLANDS), petitioner, vs. TOMAS TOH,
SR., AND REGIONAL TRIAL COURT, MANDALUYONG CITY, BRANCH 214, respondents.

Civil Procedure; Actions; Pleadings and Practice; Certiorari; Exceptions; The appellate court’s action is
not wanting in precedents as a special civil action for certiorari may be given due course,
notwithstanding that no motion for reconsideration has been filed.—The appellate court’s action is not
wanting in precedents as a special civil action for certiorari may be given due course, notwithstanding
that no motion for reconsideration has been filed before the lower court under certain exceptional
circumstances. These exceptions include instances where: (1) the issue raised is purely one of law; (2)
public interest is involved; (3) the matter is one of urgency; (4) the question of jurisdiction was squarely
raised, submitted to, met and decided by the lower court; and (5) where the order is a patent nullity.

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* SECOND DIVISION.

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Far East Bank and Trust Co. vs. Toh, Sr.

Same; Same; Same; Discretionary Execution; “Good Reasons,” Defined; Discretionary execution is
permissibile only when “good reasons” exist for immediately executing the judgment before finality or
pending appeal.—Discretionary execution is permissible only when “good reasons” exist for
immediately executing the judgment before finality or pending appeal or even before the expiration of
the time to appeal. “Good reasons” are compelling circumstances justifying the immediate execution
lest judgment becomes illusory, or the prevailing party may, after the lapse of time, become unable to
enjoy it, considering the tactics of the adverse party who may apparently have no case except to delay.

Same; Same; Same; Same; Same; Old age is a “good reason” to allow execution pending appeal.—Old
age is a “good reason” to allow execution pending appeal as any delay in the final disposition of the
present case may deny private respondent of his right to enjoy fully the money he has with defendant
bank. The Court of Appeals found said ruling in conformity with sound logical precepts, inspired as it is
by the probability that the lapse of time would render the ultimate judgment ineffective. It further
stressed that the trial court was in the vantage position to determine whether private respondent’s
advanced age and state of health would merit the execution private respondent prayed for.

Same; Same; Same; Evidence; Certiorari; Re-examination is improper in a petition for review on
certiorari.—Needless to stress, such reexamination is improper in a petition for review on certiorari.
Here, only questions of law should be raised. Factual findings of the trial court, when affirmed by the
appellate court, bind this Court and are entitled to utmost respect.

PETITION for review on certiorari of the decision of the Court of Appeals.

The facts are stated in the resolution of the Court.

Burkley & Associates for petitioner.

Jose Miguel T. Arroyo for respondent.

RESOLUTION

QUISUMBING, J.:

Assailed in this petition for review on certiorari is the Resolution1 dated June 26, 2000 of the Court of
Appeals in CA-G.R. SP
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1 Rollo, pp. 18-22.

592

592

SUPREME COURT REPORTS ANNOTATED

Far East Bank and Trust Co. vs. Toh, Sr.

No. 59234, which dismissed petitioner’s petition and affirmed the Order2 dated May 26, 2000 of the
Regional Trial Court (RTC) of Mandaluyong City, Branch 214 in Civil Case No. MC-99-643 granting private
respondent’s motion for discretionary execution because of private respondent’s advanced age.
Likewise challenged is the appellate court’s Resolution3 dated July 10, 2000, denying petitioner’s motion
for reconsideration in CA-G.R. SP No. 59234.

The factual antecedents of this case, as culled from the records, are as follows:

On March 17, 1999, Tomas Toh, Sr., private respondent herein, filed Civil Case No. MC-99-643 against
petitioner Far East Bank & Trust Co. (FEBTCO now merged in Bank of the Philippine Islands), seeking
recovery of his bank deposits with petitioner in the amount of P2,560,644.68 plus damages. In his
complaint, Toh claimed that petitioner had debited, without Toh’s knowledge and consent, said amount
from his savings and current accounts with petitioner bank and then applied the money as payment for
the Letters of Credit availed of by Catmon Sales International Corporation (CASICO) from petitioner.
Thus, when Toh issued two checks to Anton Construction Supply, Inc., they were dishonored by FEBTCO
allegedly for having been drawn against insufficient funds, although Toh alleged as of February 4, 1999,
he had an outstanding withdrawable balance of P2,560,644.68.
It appears that earlier on August 29, 1997, private respondent Tomas Toh, Sr., together with his sons,
Tomas Tan Toh, Jr., and Antonio Tan Toh, had executed a Comprehensive Security Agreement in favor of
petitioner, wherein the Tohs jointly and severally bound themselves as sureties for the P22 million credit
facilities, denominated as Omnibus Line and Bills Purchased Line, earlier granted by petitioner to
CASICO. Said credit line expired on June 30, 1998, but the parties renewed the same for another year,
subject to the following amendments: (1) a reduction in the credit line from P22 million to P7.5 million;
and (2) the relief of Toh, Sr., as one of the sureties of CASICO.

In its answer to private respondent’s complaint, petitioner bank averred that the debiting of Toh’s bank
accounts was justified due to his surety undertaking in the event of the default of CASICO in

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2 Id., at pp. 29-30.

3 Id., at p. 23.

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Far East Bank and Trust Co. vs. Toh, Sr.

its payments. Petitioner further claimed that the reduction of credit line does not relieve Toh, Sr. from
his continuing surety obligation, citing the absence of a new surety undertaking or any provisions in the
renewal agreement releasing Toh, Sr., from his personal obligation. It pointed out that CASICO’s default
in its obligations became inevitable after CASICO filed a Petition for Declaration in a State of Suspension
of Payments before the Securities and Exchange Commission (SEC).
On July 30, 1999, private respondent filed a Motion for Judgment on the Pleadings, which petitioner
opposed. On October 15, 1999, the lower court granted the aforesaid motion. In its Order dated March
10, 2000, the lower court rendered a decision in favor of Toh, Sr., the dispositive portion of which reads:

“WHEREFORE, judgment is hereby rendered ordering the defendant to restore immediately to plaintiff ’s
savings/current accounts the amount of P2,560,644.68 plus the stipulated interest thereon from
February 17, 1999, until fully restored; and to pay to the plaintiff the amount of P100,000.00, as moral
damages; and the amount of P50,000.00, as and by way of attorney’s fees. With costs against the
defendant.”4

On March 29, 2000, Toh, Sr., filed a Motion for Discretionary Execution by invoking Section 2,5 Rule 39
of the Revised Rules of Court. He prayed that execution pending appeal be granted on the

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4 Rollo, p. 28.

5 SEC. 2. Discretionary execution.—

(a)Execution of a judgment or a final order pending appeal.—On motion of the prevailing party with
notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as the case may be, at the time of the
filing of such motion, said court may, in its discretion, order execution of a judgment or final order even
before the expiration of the period to appeal.

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the
appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order after due
hearing.
(b)Execution of several, separate, or partial judgments.—A several, separate or partial judgment may be
executed under the same terms and conditions as execution of a judgment or final order pending
appeal.

594

594

SUPREME COURT REPORTS ANNOTATED

Far East Bank and Trust Co. vs. Toh, Sr.

ground of old age and the probability that he may not be able to enjoy his money deposited in
petitioner’s bank. Petitioner duly opposed said motion.

On March 31, 2000, while private respondent’s motion was pending before the RTC, petitioner filed a
notice of appeal of the trial court’s order of March 10, 2000.

On May 26, 2000, the RTC issued its order granting private respondent’s Motion for Discretionary
Execution, thus:

“WHEREFORE, the motion for discretionary execution is GRANTED. The issuance of the corresponding
writ of execution for the enforcement and satisfaction of the aforesaid decision against the defendant is
hereby ordered.”6

On May 30, 2000, petitioner’s appeal was given due course.

In granting Toh’s motion, the trial court held that discretionary execution may be issued upon good
reasons by virtue of Section 2(a),7 Rule 39 of the Revised Rules of Court. Citing De Leon v. Soriano,8
where we held that the approach of the end of one’s life span is a compelling cause for discretionary
execution pending appeal,9 the trial court used the circumstance of Toh’s advanced age as a “good
reason” to allow execution pending appeal.

On June 16, 2000, petitioner decided to forego filing a motion for reconsideration of the trial court’s
order of May 26, 2000. Instead, it brought the matter to the Court of Appeals in a special civil action for
certiorari, docketed as CA-G.R. SP No. 59234.

On June 26, 2000, the appellate court decided CA-G.R. SP No. 59234 as follows:

WHEREFORE, premises considered, the instant petition for certiorari is hereby DISMISSED.10

The Court of Appeals pointed out that petitioner filed its petition for certiorari without filing a motion
for reconsideration. It held that the fact that the lower court already ordered the execu-

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6 Supra, note 4 at p. 30.

7 Supra, note 5.

8 95 Phil. 806, 815 (1954).

9 Id., at pp. 815-816.

10 Rollo, p. 22.

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Far East Bank and Trust Co. vs. Toh, Sr.

tion of its judgment did not constitute a situation of extreme urgency as to justify petitioner’s by-passing
the remedy of reconsideration. The appellate court declared it found no grave abuse of discretion on
the part of the trial court in granting discretionary execution. For the trial court had determined that
Toh, Sr. was already 79 years old and given his advanced age, might not be able to enjoy the fruits of a
judgment favorable to him if he were to wait for the eventual resolution of the appeal filed by
petitioner.

Petitioner filed its Motion for Reconsideration but the Court of Appeals denied it on July 10, 2000.

Hence, this petition where petitioner submits the following issues for our resolution:

1) WHETHER OR NOT THE FILING OF A MOTION FOR RECONSIDERATION IS NECESSARY BEFORE

PETITIONER BANK CAN ASSAIL THE LOWER COURT’S ORDER DATED MAY 26, 2000 IN A SPECIAL CIVIL
ACTION FOR CERTIORARI BEFORE THE HONORABLE COURT OF APPEALS.

2) WHETHER OR NOT THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED IN RULING THAT THE
LOWER COURT COMMITTED NO GRAVE ABUSE OF DISCRETION IN ISSUING THE ORDER OF MAY 26,
2000.11

At the outset, it bears stressing that the first issue is now moot. We find that the appellate court did
note petitioner’s procedural by-pass or oversight. Nonetheless it proceeded to rule on the petition on its
merits. The appellate court’s action is not wanting in precedents as a special civil action for certiorari
may be given due course, notwithstanding that no motion for reconsideration has been filed before the
lower court under certain exceptional circumstances.12 These exceptions include instances where: (1)
the issue raised is purely one of law; (2) public interest is involved; (3) the matter is one of urgency; (4)
the question of jurisdiction was squarely raised, submitted to, met and decided by the lower court; and
(5) where the order is a patent nullity.13
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11 Id., at pp. 7-8.

12 See Abraham v. National Labor Relations Commission, G.R. No. 143823, 6 March 2001, 353 SCRA 739,
744-745.

13 FERIA AND NOCHE, II CIVIL PROCEDURE ANNOTATED (1st Ed. 2001) 473.

596

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SUPREME COURT REPORTS ANNOTATED

Far East Bank and Trust Co. vs. Toh, Sr.

Hence, the only relevant issue for our resolution now is whether the Court of Appeals erred in affirming
the lower court’s Order granting execution pending appeal on the ground of advanced age of private
respondent Tomas Toh, Sr.

Petitioner contends that the Court of Appeals erred in finding no grave abuse of discretion on the part of
the lower court when it granted the motion for discretionary execution based on private respondent’s
bare allegation that he was already 79 years old.

Private respondent avers that Section 2, Rule 49 of the 1997 Rules of Civil Procedure states the
requisites for a grant of a motion pending appeal. All these requirements and conditions were complied
with as evidenced by respondent’s motion for discretionary execution, petitioner’s opposition to the
motion and the special order issued by the Regional Trial Court stating the good reason for the grant of
the motion. Hence, the Regional Trial Court could not have committed any grave abuse of discretion.14

In our view, the Court of Appeals committed no reversible error in sustaining the lower court.
Discretionary execution is permissible only when “good reasons” exist for immediately executing the
judgment before finality or pending appeal or even before the expiration of the time to appeal. “Good
reasons” are compelling circumstances justifying the immediate execution lest judgment becomes
illusory, or the prevailing party may, after the lapse of time, become unable to enjoy it, considering the
tactics of the adverse party who may apparently have no case except to delay.15

The Rules of Court does not state, enumerate, or give examples of “good reasons” to justify execution.
The determination of what is a good reason must, necessarily, be addressed to the sound discretion of
the trial court. In other words, the issuance of the writ of execution must necessarily be controlled by
the judgment of the judge in accordance with his own conscience and by a sense of justice and equity,
free from the control of another’s judgment or conscience. It must be so for discretion implies the
absence of a hard and fast rule.16

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14 Rollo, pp. 80-82.

15 Philippine Bank of Communications v. Court of Appeals, G.R. No. 126158, 23 September 1997, 279
SCRA 364, 372.

16 City of Manila v. Court of Appeals, G.R. No. L-35253, 26 July 1976, 72 SCRA 98, 103-104.

597

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Far East Bank and Trust Co. vs. Toh, Sr.

In this case, the trial court granted private respondent’s motion for discretionary execution due to his
advanced age, citing our ruling in De Leon v. Soriano.17 It concluded that old age is a “good reason” to
allow execution pending appeal as any delay in the final disposition of the present case may deny
private respondent of his right to enjoy fully the money he has with defendant bank.18 The Court of
Appeals found said ruling in conformity with sound logical precepts, inspired as it is by the probability
that the lapse of time would render the ultimate judgment ineffective. It further stressed that the trial
court was in the vantage position to determine whether private respondent’s advanced age and state of
health would merit the execution private respondent prayed for.

In De Leon, we upheld immediate execution of judgment in favor of a 75-year-old woman. We ruled that
her need of and right to immediate execution of the decision in her favor amply satisfied the
requirement of a paramount and compelling reason of urgency and justice, outweighing the security
offered by the supersedeas bond.19 In the subsequent case of Borja v. Court of Appeals,20 we likewise
allowed execution pending appeal in favor of a 76 year-old man on the ground that the appeal will take
years to decide with finality, and he might very well be facing a different judgment from a Court higher
than any earthly tribunal and the decision on his complaint, even if it be in his favor, would have become
meaningless as far as he himself was concerned.21

In the present case, private respondent Toh is already 79 years old. It cannot, by any stretch of
imagination, be denied that he is already of advanced age. Not a few might be fortunate to live beyond
79 years. But no one could claim with certainty that his tribe would be always blessed with long life.

Private respondent obtained a favorable judgment in the trial court. But that judgment in Civil Case No.
MC-99-643 is still on appeal before the Court of Appeals. It might even reach this Court before the
controversy is finally resolved with finality. As well said in Borja, “while we may not agree that a man of
his years is practi-

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17 95 Phil. 806 (1954).

18 Rollo, p. 30.

19 Id., at pp. 814-815.

20 G.R. No. 95667, 8 May 1991, 196 SCRA 847.

21 Id., at p. 850.

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SUPREME COURT REPORTS ANNOTATED

cally moribund, the Court can appreciate his apprehension that he will not be long for this world and
may not enjoy the fruit of the judgment before he finally passes away.”22

Petitioner avers that private respondent’s claim of old age was unsubstantiated by clear and convincing
evidence. In essence, petitioner wants us to re-evaluate this factual issue. Needless to stress, such re-
examination is improper in a petition for review on certiorari. Here, only questions of law should be
raised.23 Factual findings of the trial court, when affirmed by the appellate court, bind this Court and
are entitled to utmost respect.24 No cogent reason having been given for us to depart therefrom we
shall stand by this salutary rule.
WHEREFORE, the petition is DENIED for lack of merit. The assailed resolutions of the Court of Appeals in
CA-G.R. SP No. 59234 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Bellosillo (Chairman) and Callejo, Sr., JJ., concur.

Austria-Martinez, J., On official leave.

Petition denied, judgments affirmed.

Note.—Discretionary execution is thus barred when the trial court loses jurisdiction and this occurs
when all of the parties have filed their respective appeals or when the period to appeal has lapsed for
those who did not file their appeals and when the court is no longer in possession of the records of the
case. (Zacate vs. Commission on Elections, 353 SCRA 441 [2001]) Far East Bank and Trust Co. vs. Toh, Sr.,
404 SCRA 590, G.R. No. 144018 June 23, 2003